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Substantive Equality

Published online by Cambridge University Press:  08 January 2001

Catherine Barnard  and
Bob Hepple
Catherine Barnard
Affiliation:
Trinity College, Cambridge
Bob Hepple
Affiliation:
Clare College, Cambridge
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Extract

This article considers the extent to which EC and UK equality law are moving away from liberal notions of non-discrimination towards an approach based on substantive equality or equity, not only in the field of sex discrimination but also in respect of race and disability discrimination at a time when the EC is expanding its competence in these areas. The article begins by restating some basic concepts which feature in the forensic and legislative arguments about equality. It then seeks to answer the initial question by providing a critical analysis of recent judicial and legislative developments in three areas: (1) indirect discrimination; (2) the scope of permitted positive action in favour of disadvantaged groups; and (3) the rights of part-time workers to equal treatment with full-timers, and of workers on fixed-term contracts to equal treatment with permanent workers.

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Articles
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The Cambridge Law Journal , Volume 59 , Issue 3 , 16 November 2000 , pp. 562 - 585
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Copyright © Cambridge Law Journal and Contributors 2000

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References

1 This includes discrimination against married persons on grounds of their marital status, and also gender reassignment, the latter under the Sex Discrimination (Gender Reassignment) Regulations 1999, S.I. 1102 (and in Northern Ireland, S.R. 1999/311) implementing the E.C.J.'s decision in Case C-13/94 P v. S and Cornwall County Council [1996] E.C.R. I-2143.

2 S. 1(1)(a); Sex Discrimination (Northern Ireland) order 1976, No.1042 (N.I.15), art. 3(1)(a).

3 Defined as any of the following: colour, race, nationality, ethnic or national origins: RRA, s. 3(1).

4 S. 1(1)(a); Race Relations (Northern Ireland) order 1997, No. 869 (N.I.16), art. 3(1)(a).

5 S.I. 3162 (N.I.21).

6 S. 5(1)(a).

7 See too, Equal Pay Act 1970, s.1 (equal treatment of men and women in respect of contractual terms).

8 Council Directive 76/207/EC (OJ [1976] L 39/40).

9 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ [2000] L180/22).

10 Council Directive 97/81/EC, (OJ [1998] L 14/9) implemented from 1 July 2000 by the PartTime Workers (Prevention of Less Favourable Treatment) Regulations 2000, S.I. No. 1551 (“Part-Time Work Regulations”).

11 Council Directive 1999/70/EC (OJ [1999] L175/43) which is yet to be implemented in the U.K.

12 E.g., Zafar v. Glasgow City Council [1998] I.R.L.R. 36, H.L.

13 E.g., Balgobin v. London Borough of Tower Hamlets [1987] I.R.L.R. 402, E.A.T. (requiring woman to continue to work with alleged harasser not less favourable treatment because man alleging homosexual advances would have been treated similarly); Stewart v. Cleveland Guest (Engineering) Ltd. [1994] I.R.L.R. 440, E.A.T. (display of pictures of nude women genderneutral because hypothetical man might also have been offended); cf. British Telecommunications plc v. Williams [1997] I.R.L.R. 668, E.A.T. (sexual harassment treated as discriminatory per se without need for comparison).

14 E.g., Case C-408/92 Smith v. Avdel [1994] E.C.R. I-4435 (raising of pension age for women to the same as that for men satisfies principle of equal treatment).

15 Case C-249/96 Grant v. South West Trains [1998] I.R.L.R. 165.

16 See Barnard, C., “The Principle of Equality in the Community Context: P, Grant, Kalanke and Marschall: Four Uneasy Bedfellows?” (1998) 57 C.L.J. 352 at pp. 364366CrossRefGoogle Scholar.

17 See Fredman, S., Women and the Law, (Clarendon Press, Oxford, 1997) pp. 179224Google Scholar.

18 Equal Pay Act 1970, s.1(6). EC law appears to be slightly wider allowing a comparison with those in the same (public) service: Scullard v. Knowles [1996] I.R.L.R. 344, E.A.T.; cf. Lawrence v. Regent Office Care Ltd. [1999] I.R.L.R. 148, E.A.T.

19 S. Fredman, “A Critical Review of the Concept of Equality in U.K. Anti-Discrimination Law”, Independent Review of the Enforcement of U.K. Anti-Discrimination Legislation, Working Paper No. 3, (Cambridge Centre for Public Law and Judge Institute of Management Studies, November 1999), paras. 3.7-3.19.

20 S. 1(1)(b).

21 S. 1(1)(b).

22 Art. 3(2)(b).

23 The DDA defines discrimination in two ways: (1) less favourable treatment which cannot be justified, and (2) a failure to comply with the duty to make reasonable adjustments for a disabled person. It is not clear that all indirect discrimination will be caught by the latter: see Hepple, B., Coussey, M., Choudhury, T., Equality: a New Framework. Report of the Independent Review of the Enforcement of U.K. Anti-Discrimination Legislation, (Oxford, Hart Publishing, 2000)Google Scholar, paras. 2.32-33.

24 See C. Barnard and B. Hepple, “Indirect Discrimination: Interpreting Seymour-Smith” (1999) 58 C.L.J. 399, 401-402.

25 FETO, Art. 4(1); based on the White Paper, Northern Ireland Office, Fair Employment in Northern Ireland (HMSO, London, 1988, Cm. 3890)Google Scholar.

26 House of Commons, Northern Ireland Affairs Committee, Fourth Report, The Operation of the Fair Employment (Northern Ireland) Act 1989: Ten Years On, Session 1998-99, HC 98 (1999).

27 Employment Equity Act 1995 [Can.], s. 2.

28 Fredman, Working Paper (n. 19 above), para. 3.12.

29 See Art. 2(4) of Directive 76/207 considered further below and Case C-450/93 Kalanke v. Freie und Hansestadt Bremen [1995] E.C.R. I-3051, para. 23.

30 FETO, art. 5; art. 5(4) sets out the kinds of opportunity encompassed by the duty.

31 Scotland Act 1998, sched. 5, Part II.1.2.

32 Government of Wales Act 1998, s. 48, and Standing Order 14 of the Welsh Assembly.

33 Greater London Authority Act 1999, s. 33.

34 Cabinet Office, Equality Statement, 30 November 1999.

35 Fredman, Working Paper (n. 19 above), para. 3.13.

36 See Fredman, S., “Equality Issues” in Markesinis, B.S. ed., The Impact of the Human Rights Bill on English Law, (Oxford University Press, Oxford, 1998) 111-132 at pp. 115118Google Scholar. On 26 June 2000, the Committee of Ministers of the Council of Europe adopted Protocol No. 12 to the ECHR, which extends the non-discrimination principle to all “rights set forth by law” and requires public authorities not to discriminate on the specified grounds. This opens for signature and ratification in November 2000.

37 E.g. Belgian Constitution, Art. 23; German Basic Law, Art. 1, Greek Constitution, Art. 2, Italian Constitution, Art. 2.

38 Miron v. Trudel [1995] S.C.R. 418 at p. 489.

39 [1996] E.C.R. I-2143, para. 22.

40 Art. 2(2). OJ [1998] L14/6, amended by Directive 98/52/EC (OJ [1998] L205/66). This awaits implementation: see Hepple et al. (n. 23 above), paras. 4.37 to 4.39, as to how this should be done. For further details see Barnard, C., EC Employment Law, 2nd ed. (OUP, Oxford, 2000)Google Scholar, ch. 4.

41 Case 96/80 Jenkins v. Kingsgate [1981] E.C.R 911.

42 See e.g. Case 170/84 Bilka-Kaufhaus [1986] E.C.R 1607. In the case of sex discrimination, but not race discrimination, damages can be obtained even if the indirect discrimination is unintentional: Sex Discrimination and Equal Pay (Remedies) Regulations 1993, S.I.1993/2798; cf. RRA, s. 57(3).

43 In Case C-237/94, O’Flynn v. Adjudication Officer [1996] E.C.R. I-2617, to which the Explanatory Memorandum COM(99)566 final, refers but appears to misinterpret.

44 See esp. House of Lords Select Committee on the European Union, EU Proposals to Combat Discrimination, HL Paper 65, Session 1999-2000, 9th Report, paras. 79-83.

45 Art.2(b).

46 See RRA, s.1(1)(b)(i); and see Memorandum by JUSTICE to the House of Lords Committee (n. 44 above), p. 113.

47 See Nagarjan v. London Regional Transport [1999] I.C.R. 977, H.L.

48 n. 77 below.

49 [1999] I.R.L.R.581, H.L. One welcome aspect of the definition in both the Burden of Proof Directive and the Race Directive is that, by referring to “an apparently neutral provision, criterion or practice” it puts beyond doubt that the need under U.K. legislation to satisfy the more stringent test of a “requirement or condition” is incompatible with EC law: cf. Perera v. Civil Service [1983] I.R.L.R. 166, C.A., and Bhudi v. I.M.I. [1994] I.R.L.R. 204.

50 Per Lord Slynn, 583. Cf. the approach adopted by the Industrial Tribunal in London Underground v. Edwards (No. 2) [1998] I.R.L.R. 364, 366 which was subsequently approved by the Court of Appeal: (a) What was the relevant “requirement or condition” which was applied to the applicant? (b) Could she comply with it? (c) If not, was it one which “a considerably smaller proportion of female train operators than of male operators could comply”? (d) If so, was it justifiable?

51 Lord Slynn at p. 583, Lord Hoffmann at p. 588, Lord Clyde at p. 589. Lord Steyn at p. 588 limited the decision on this “difficult issue” to “the special facts of this case.”.

52 At p. 581.

53 Cases C-399/92, C-409/92, C-425/92, C-34/93 and C-50/93 Stadt Lengerich v. Helmig [1994] E.C.R. I-5727. Cf. the Court of Justice's decisions in Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin eV v. Botel [1992] E.C.R. I-3589; Case C-457/93 Kuratorium für Dialyse und-Nierentransplantation eV v. Lewark [1996] E.C.R. I-243; and Case C-278/93 Freers and Speckmann v. Deutsche Bundespost [1996] E.C.R. I-1165.

54 The Part-Time Work Directive and Regulations (section IV below) adopt the same approach to overtime pay.

55 Rubenstein [1995] I.R.L.R. 183. See also Hakim, C., Key Issues in Women's Work (Athlone, London, 1996), pp. 198200Google Scholar; Hervey, T. and Shaw, J., “Women, work and care: women's dual role and double burden in EC sex equality law” (1998) 8 Journal of European Social Policy 43CrossRefGoogle Scholar.

56 This is how the question is formulated by the Hon. Mr Justice Elias (who was counsel for the employer) in Equal Pay and Sex Discrimination: Some Conceptual Puzzles, (Employment Lawyers’ Association, London, 1999), p. 24Google Scholar.

57 Lord Lester of Herne Hill QC and Rose, Dinah, “Sorting out Mr Justice Elias’ Conceptual Puzzles” (2000) 7 ELA Briefing 43 at p. 44Google Scholar.

58 Case C-127/92 Enderby [1993] E.C.R. I-5535; criticised by Elias J. (n. 56 above) and defended by Lester and Rose (n. 57 above).

59 See also s. 5(3) SDA: the pool must be comprised of people whose relevant circumstances are the same or not materially different. For example, in London Underground Ltd v. Edwards (No. 1) [1995] I.R.L.R. 355 (approved in [1998] I.R.L.R. 364, 369 (CA)) the pool was all train operators to whom the new rostering arrangements applied as opposed to employees who were single parents.

60 This has been interpreted to mean can “in practice” comply: Price v. Civil Service Commission [1977] IRLR. 291; Mandla v. Lee [1983] I.R.L.R. 209.

61 Case C-167/97, R v. Secretary of State for Employment, ex parte Seymour-Smith and Perez [1999] E.C.R. I-623.

62 See Barnard and Hepple (n. 24 above), at pp. 405-409.

63 The two-year service requirement has now been reduced to one year by the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999, S.I. 1999/1436.

64 Para. 64.

65 [2000] I.R.L.R. 263

66 Following the approach of the Court of Appeal [1995] I.C.R. 889, 953B.

67 At p. 270.

68 See Deakin, S. and Morris, G., Labour Law (Butterworths, London, 1998), 582583Google Scholar; and the remarks of Simon Brown L.J. in London Underground v. Edwards (No. 2) [1998] I.R.L.R. 364 at p. 370.

69 [1999] I.R.L.R. at p. 586.

70 Case C-167/97 [1999] E.C.R I-623, considered in detail in Barnard and Hepple, above, n. 24.

71 Para. 59.

72 Para. 60.

73 He then cited three cases where the Court looked at the composition of the disadvantaged group: Case 170/84 Bilka-Kaufhaus [1987] E.C.R 1607, para. 31, Case C-184/89 Nimz v. Freie und Hansestadt Hamburg [1991] E.C.R. I-297, para. 12, and Case C-33/89 Kowalska v. Freie und Hansestadt Hamburg [1990] E.C.R. I-2591, paras. 13-16.

74 [1998] I.R.L.R. 364; see Barnard and Hepple (n. 24 above), 406.

75 [1998] I.R.L.R. 364, 369.

76 Para. 10 of the IT's decision, reproduced at [1998] I.R.L.R. 364, 367.

77 Case C-237/94 O’Flynn v. Adjudication Officer [1996] E.C.R I-2617, paras. 18-19.

78 For recent examples see Case C-15/96 Kalliope Schöning-Kougebetopoulou v. Freie und Hansestadt Hamburg [1998] E.C.R I-47. See also Case C-187/96 Commission v. Greece [1998] E.C.R I-1095; Case C-350/96 Clean Car Autoservice v. Landeshauptmann von Wien [1998] E.C.R I-2521.

79 Para. 54.

80 House of Lords Select Committee (n. 44 above), para. 80. In some Member States, such as France, there is strong resistance to the collection of statistical data of racial groups etc.

81 House of Lords Select Committee (n. 44 above), para. 83.

82 Art. 2(2).

83 Case C-281/97 Krüger v. Kreiskrankenhaus Ebersberg, judgment of 9 Sept. 1999. See also Case C-243/95 Hill and Stapleton v. Revenue Commissioners [1998] E.C.R. I-3739.

84 Lords Slynn and Clyde agreed obiter. By contrast, Lord Steyn said obiter that he had “no difficulty in ruling that the bank should fail on objective justification”.

85 Para. 77; Barnard and Hepple (n. 24), at pp. 409-411.

86 Case 171/88 Rinner-Kühn v. FWW Spezial-Gebäudereinignung [1989] E.C.R 2743.

87 Case C-317/93 Nolte v. Landesversicherungsanstalt Hannover [1995] E.C.R. I-4625 and Case C444/93 Megner and Scheffel v. Innungskrankenkasse Vorderpfalz [1995] E.C.R. I-4741.

88 The Court reached similar conclusions in Case C-8/94 Laperre v. Bestuurcommissie beroepzaken in de provincie Zuid-Holland [1996] E.C.R. I-273, and Case C-280/94 Posthuma-van Damme v. Bestuur van de Bedrijfsvereniging voor Detailhandel [1996] E.C.R. I-179.

89 The Directive does not apply to Directive 79/7 on equal treatment in social security.

90 See Fredman, Working Paper (n. 19 above) for a comparative discussion.

91 SDA, ss. 47-48; SD (NI) O, arts. 48-49; RRA, ss. 35,38; RR(NI)O, art.37.

92 Hepple et al. (n. 23 above), Appendix 1.

93 Ibid., para. 2.48.

94 See also the soft law Recommendation 84/635/EEC (OJ [1984] L331/34).

95 See e.g. Case C-450/93 Kalanke v. Freie und Hansestadt Bremen [1995] E.C.R. I-3051.

96 COM(2000)334 envisages that Article 141(4) should replace Article 2(4).

97 Art. 5.

98 Case C-409/95 Marschall v. Land Nordrhein-Westfalen [1997] E.C.R. I-6363.

99 Barnard (n. 16 above) at pp. 366-372.

100 See also the views of the Federal Labour Court when the Kalanke case returned to it (Nr 226), Urteil; vom 5.3.1996-1 AZR 590/92 (A). It said that it was impossible to distinguish between opportunity and result, especially in the case of engagement and promotion because the selection itself was influenced by circumstances, expectations and prejudices that typically diminish the chances of women.

101 Paras. 29 and 30.

102 Case C-450/93 [1995] E.C.R I-3051.

103 Case C-407/98 Abrahamsson v. Fogelqvist, judgment of 6 July 2000.

104 This outcome was not affected by the limited number of posts to which the rule applied nor the level of the appointment.

105 Case C-158/97 Badeck v. Hessischer Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen, judgment of 28 March 2000 [2000] I.R.L.R. 432.

106 These reasons of “greater legal weight” concern five rules of law, described as “social aspects”, which make no reference to sex. Preferential treatment is given first, to former employees in the public service who have left the service because of family commitments; second, to individuals who worked on a part-time basis for family reasons and now wish to resume full-time employment; third, to former temporary soldiers; fourth, to seriously disabled people; and fifth, to the long-term unemployed. See generally Barnard, C. EC Employment Law, 2nd ed. (OUP, Oxford, 2000) pp. 241248Google Scholar.

107 Meeks v. National Union of Agricultural and Allied Workers [1976] I.R.L.R. 198 (Chair: B.A. Hepple).

108 [1994] I.R.L.R.176, H.L.

109 [2000] I.R.L.R. 263, H.L.

110 See above, nn. 59-81.

111 See Hepple, B., “Equality and Discrimination” in Davies, P. et al., eds., European Community Labour Law (Oxford: Clarendon Press, 1996), at pp. 246253Google Scholar.

112 S. Fredman, Women and the Law, p. 312.

113 These include the same rights in respect of organisation and representation, health and safety and anti-discrimination, proportional pay and equivalent rights in respect of social security, dismissal, maternity and other matters.

114 See M. Jeffrey, “Not Really Going to Work? Of the Directive on Part-Time Work, Atypical Work and Attempts to Regulate it” (1998) 27 I.L.J. 193-213, esp. at p. 200.

115 Reg. 5(1) and 5(2)(a). In determining whether a part-timer has been treated “less favourably” than a comparable full-timer, the “pro rata” principle is to be applied “unless it is inappropriate” (Reg 5(3)). A part-timer paid at a lower overtime rate than a full-timer is not to be regarded as less favourably treated if the total number of hours worked by the parttimer, including overtime, is less than or equal to the total number of hours, disregarding overtime, which the comparable full-timer is required to work in the period (Reg. 5(4)).

116 Reg. 2(1).

117 The Directive (Agreement, clause 3(2)) envisages a comparison where there is no full-time worker “in the same establishment” where this can be done by reference to “the applicable collective agreement, or where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.” The Regulations (Reg. 2(4)(b)) allow a comparison with a full-timer under the same type of contract at another establishment of the same employer where there is no comparable full-timer at the same establishment as the parttimer. There can be no comparison with a full-timer employed by an “associated employer” or in the same public service.

118 Reg. 2(4). The Directive (Agreement Clause 3(2)) requires a full-timer who is “engaged in” the same or similar work. Arguably, this connotes contemporaneity. There are two exceptions in the Regulations: (1) a full-timer who becomes a part-timer may make a comparison with the terms under which she was employed as a part-timer (Reg. 3); and (2) a full-timer who returns to part-time work in the same job or at the same level after a break of up to 12 months may make a comparison with the terms under which she was employed as a fulltimer (Reg. 4). In these two cases the comparison can be made even if the part-time contract is of a different type (e.g. fixed-term or temporary) from the full-time contract.

119 Case 129/79 Macarthys Ltd v. Smith [1980] E.C.R. 1275.

120 Reg. 2(3). The Directive (Agreement clause 3(2)) refers to “the same type of contract or employment relationship”).

121 Reg. 2(3)(f).

122 Reg. 2(4)(a)(ii).

123 OJ 1975 L45/19.

124 The Regulations are therefore asymmetrical: full-timers cannot claim direct discrimination against part-timers.

125 Reg. 5(2).

126 DDA, s. 5(1)(a).

127 Employment Rights Act 1996, s. 99.

128 Reg. 5(2)(b). Cf. DDA, s. 5(1)(b).

129 H.J. Heinz Co. v Kenrick [2000] I.R.L.R. 144, E.A.T., at p. 146.

130 DDA, s. 6(1).

131 Agreement, clause 5(3)(d).

132 This approach itself is not straightforward cf. Clymo v. Wandsworth BC [1989] I.R.L.R. 241(EAT) with Briggs v. North Eastern Education and Library Board [1990] I.R.L.R. 181 (NICA).

133 Murray, “Normalising Temporary Work” (1999) 28 I.L.J. 269.

134 See Hepple (n. 111 above), at p. 252.

135 DDA, s. 5.

136 See Disability Rights Task Force, From Exclusion to Inclusion, (DfEE, London, 1999)Google Scholar recommendations 5.5-5.6 as to problems with this duty.

137 See Hepple et al., (n. 23 above), para. 2.33.

138 A step in this direction, but at present only soft law, are Council Resolution of 27 March 1995 (OJ [1995] L168/3) and Council Recommendation 96/694/EC (OJ [1996] L319/11) on the balanced participation of women and men in the decision-making process; Resolution of the Council and of the Ministers for employment and social policy, meeting within the Council of 29 June 2000 on the balanced participation of women and men in family and working life (OJ [2000] C218/2).

139 See the detailed proposals in Hepple et.al. (n. 23 above) and McCrudden, , “Mainstreaming Equality in the Governance of Northern Ireland” (1999) 22 Fordham International Law Journal 1696Google Scholar.